The U.S. Supreme Court could decide this coming week whether to let Arizona argue that it can deny benefits to the domestic partners of its gay workers.
Attorneys for the state are asking the justices to overturn lower court rulings which concluded it is illegal discrimination to provide health care and other perks to spouses of heterosexual workers while making those off limits to homosexuals. The first step is getting the nation's high court to agree to hear the case.
Attorney General Tom Horne contends Arizona has a legitimate "interest in promoting marriage.''
Horne also said the 2009 state law was not done with the intent of discriminating against gays. He said lawmakers cut benefits for all unmarried couples as a way of saving money for the financially strapped state.
But Tara Borelli, an attorney for Lamba Legal Defense and Education Fund, said Horne's claim that the law does not discriminate rings hollow.
She acknowledged the statute says an employee has to be married to get benefits for a spouse and that the law makes no reference to the worker's sexual orientation. But Borelli said that misses a key point.
"Unmarried heterosexual couples have the option to marry at any instance and they can immediately enroll for family health benefits,'' she said. With Arizona voters having approved a ban on same-sex marriage, "that option is absolutely not available to gay people, and gay people alone.''
And she scoffed at Horne's contention that the financial savings to state taxpayers justify the law.
"You're not only entitled to equal treatment if it's free,'' Borelli said.
The state's petition to have the justices consider overturning the lower court rulings against Arizona on this issue comes as the court is simultaneously weighing whether to hear broader issues of discrimination against gays.
Most involve challenges to the federal Defense of Marriage Act which says there is no requirement for the government to give the same legal treatment to those married in states that do allow same-sex nuptials as heterosexual couples. This normally shows up in things like being able to file joint tax returns and the ability to inherit a partner's estate without paying taxes.
There also is review of California's Proposition 8 where a lower court struck down a voter-approved measure which overturned a state law allowing gays to wed.
And then there is the Arizona law.
Arizona provides various benefits to the dependents of its state and university employees. Until 2008, however, that did not include the domestic partners of its unmarried workers.
That year, at the direction of then-Gov. Janet Napolitano, the Department of Administration rewrote its rules to define who is a "dependent'' to include someone living with the employee for at least a year and expected to continue living with that person. That rule contained no reference to the gender of the partner.
In 2009, Napolitano left to become Homeland Security secretary in the Obama administration, elevating Jan Brewer to governor.
That allowed the Republican-controlled Legislature to statutorily override the rule, putting a provision into the budget limiting who is entitled to dependent coverage. It specifically excluded the partners of unmarried employees, whether gay or not.
That led to the legal challenge to the law by Lambda Legal, at least on behalf of gay workers. There was no appeal filed on behalf of unmarried heterosexual couples as the issues are somewhat different because they do have the option to marry.
A trial judge issued an injunction to keep the benefits for partners of gay employees in place until there is a trial, something that has not yet been scheduled. That decision was upheld last year by the 9th U.S. Circuit Court of Appeals.
The judges acknowledged the state is not obligated to provide health insurance for its workers or their families.
"But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular," Judge Mary Schroeder wrote for the unanimous court, noting there is no other way for gay workers in Arizona to get those benefits since they cannot legally marry.
That led Horne to ask the Supreme Court to intercede.
Horne said there is no evidence the state intended to discriminate against gays, pointing out the law requiring couples to be married to get partner benefits treats all unmarried employees the same way, regardless of sexual orientation. And he said challengers have to prove that it was the intent of the Legislature to discriminate to win a case under federal equal protection arguments, not just that the law disproportionately affects gays.
Borelli said has tried that same argument before, with no luck.
"What this law does is treat gay people differently,'' she said.
"It does not take anything away from heterosexual couples,'' Borelli continued. "But it does bar access (to benefits) to gay people.''
Horne, however, said the evidence shows that lawmakers in 2009 were concerned about a $1.6 billion budget deficit. He said they eliminated domestic partner benefits for all not to discriminate but because of the $5.5 million annual pricetag.
Borelli said the state is entitled to find ways to save money, but "not on the backs of vulnerable groups.''
"One might argue that it would be cheaper to pay women half their paychecks,'' she said.
"Or undoubtedly the state would save money if it denied spousal health coverage to Jewish empoyees,'' Borelli continued. "But equal protection doesn't allow that.''